President Joe Biden heralded the nation’s first-ever proposal to protect workers from heat as a lifesaving measure at a time when searing temperatures are killing more Americans than any other disaster.
But the draft rule announced this month is haunted by a 50-year-old loophole that would stop it from defending about 7.9 million workers from illness or death.
When Congress passed the 1972 law governing the Occupational Safety and Health Administration, it gave the agency authority over private companies, but not public employers such as states, counties or cities. States would have to opt in for those public workers to be covered by OSHA protections.
Twenty-three states have never taken that step.
“If they aren’t covered by OSHA, they have no right to a safe workplace. If someone gets hurt or killed, there is no investigation, no citation, no lessons learned,” said Jordan Barab, who was deputy assistant secretary for OSHA during the Obama administration.
The loophole undermines far more than the heat rule.
It affects a web of federal safety regulations that govern everything from the handling of toxic and flammable chemicals, to protecting workers from falling off ladders or being buried in trenches. If private employees get hurt or killed on the job, OSHA investigates. None of those safety measures exist for public-sector employees in 23 states.
That means workers who do the same job — such as collecting garbage — can either benefit from protections, or not, depending on whether they're a private contractor or a city employee. Imagine, for example, that two workers are digging trenches on opposite sides of the highway, but one is employed by a company and the other by a state agency.
“One guy can’t dig past five feet without shoring up the trench, and the other guy, who works for the state, can dig down 20 feet, have it cave in on top of him and be killed and no one will have broken any kind of law,” Barab said.
As a result, the public sector has a higher rate of workplace injuries than businesses.
In 2022, about 2.7 percent of private sector workers were injured on the job, according to federal data collected by the Bureau of Labor Statistics and analyzed by the AFL-CIO. The injury rate in the public sector was almost double — at 4.9 percent. Both statistics are likely undercounts because they rely on employers to report the injuries.
It’s not clear why Congress excluded public workers from the OSHA law in 1972. But labor law experts say it may have related to the Constitution's commerce clause, which governs commerce among states, and congressional anxiety over telling states and local governments how to treat their workers.
States can choose to extend OSHA protections to the public sector. But only about half have done so.
In Congress, multiple bills have been introduced in the last five decades to extend OSHA protections to the public sector nationwide, often as part of a sweeping effort to update the agency. None of the bills have gained traction.
A Department of Labor report, prepared in 1994 in response to an OSHA reform effort, estimated that the annual cost associated with injuries to public sector workers was $7.43 billion. It found that extending protections to those workers would save between $600 million and $2.1 billion annually, at a cost of $3,900 for each workplace.
The report also found that North Carolina's injury rate decreased by almost 24 percent in the eight years after it extended federal protections to public sector workers.
Today, states contemplating protections for their public workforce are often met with pushback from municipalities, which don’t want to pay the costs of implementing safety rules.
That’s the case in Pennsylvania, which is currently weighing whether to extend OSHA protection to public workers.
A representative of the County Commissioners Association of Pennsylvania spoke out against the bill at a legislative hearing in the spring of 2023.
“Local governments want to stress that we do not believe that stringent regulatory requirements, new administrative overhead and substantial fines will truly promote or improve worker safety at the local government level,” said Keith Wentz, the association's risk management director.
‘Possibly prevented’
But experts say basic protections can stop workers from dying.
In January 2006, two city workers in Daytona Beach, Florida, were using a cutting torch on the roof of a wastewater treatment plant that had been damaged in a hurricane. They didn't know they were directly above a 3,000-gallon tank of methanol. The torch ignited the tank's vapors, causing a fireball that engulfed 40-year-old Clyde Jones and 59-year old Eric Johnson. Both men died.
Florida had not opted into OSHA protections for public workers, so there were no laws requiring Daytona Beach to comply with federal standards for storing hazardous or flammable liquids or those for using torches. OSHA standards require private sector employers to tell workers annually about the chemicals that are stored in their workplace, and explain how to read labels for hazardous materials. But a Chemical Safety and Hazard Investigation Board investigation revealed that the city of Daytona Beach had not conducted any such training for years before the explosion. The workers didn’t know there were flammable materials at their workplace.
Had the city been required to comply with those rules, the Chemical Safety Board found that “the hazards of using a torch in proximity to the methanol tank would likely have been identified and possibly prevented.”
Its report recommended that Florida “enact legislation” requiring municipalities to implement policies for public employees “that are at least as effective as OSHA.”
It never happened — even though the widow of Clyde Jones, who died in the blast, pushed state officials to adopt the standards.
She also advocated for legislation in Congress to extend OSHA protections to all public sector workers.
“The government that my husband loved and served did nothing, absolutely nothing to provide him with a safe workplace,” Casey Jones told the House Education and Labor Subcommittee on Workforce Protection in 2007. “They simply ignored their responsibility for his safety because they did not have to provide a safe work environment as a city government.”
‘Raising hell’
Today, many of the states without OSHA coverage are among the nation’s hottest places. If OSHA finalizes its new heat rule — a process that's expected to take at least two years — it would require private sector employers to give their workers water and rest breaks in cool places.
But state and municipal workers in Florida, Texas and much of the deep south could still be forced to work without those safeguards.
“We have a substantial number of employees and number of specific jobs and industries that will be sorely unprotected by any heat rule that comes out of OSHA,” said Juley Fulcher, a worker advocate with Public Citizen.
She noted that many types of jobs that are at high risk for heat illness, like landscaping, construction and refuse collection, are typically held by government workers.
In some cases, unions have stepped in to try and codify safety protections for public workers in collective bargaining agreements.
There's a provision in the Miami Dade County Aviation Department union contract that guarantees annual inspections for vehicles assigned to the workforce.
But some states, like Texas, prohibit collective bargaining in the public sector, making those options unavailable to workers.
Instead, members of the American Federation of Teachers “just have to raise hell” to draw attention to unsafe conditions, said Zeph Capo, president of the Texas American Federation of Teachers and a former middle school science and social studies teacher.
His union encompasses teachers, but also maintenance workers, bus drivers and other school employees throughout Texas. Some members in Austin and Dallas were once afforded minimal heat protections through municipal ordinances that guaranteed 10-minute water breaks for construction workers after four hours of work in the heat. Those local laws were overturned by the Legislature last summer.
Now, when the heat is too much for aging school air conditioning and ventilation systems to handle, local unions organize teachers and staff to record temperatures inside classrooms.
“We put that in writing and send it to the administration, and they know that if they don’t move quick enough, we will share that information with parents and set up opportunities for parents to call in and engage with elected officials,” Capo said. “If we don’t have regulations protecting us, we just have to make their lives miserable until they do something about it.”
